Wafer v. Person, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-30139
Summary Calendar
_______________
LINDA F. WAFER,
Plaintiff-Appellant,
VERSUS
JAMES PERSON; CHUCK NORENBERG; NORMA REEDY;
AMERICAN POSTAL WORKERS UNION; PATSY PIQUE,
Defendants-Appellees,
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 02-CV-1278
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:*
Linda Wafer, pro se, appeals the dismissal
of her suit against several postal employees
and their union. Reviewing the dismissal de
novo, Brown v. NationsBank Corp., 188 F.3d
579, 585 (5th Cir. 1999), we affirm.
Wafer sued the Postmaster General for dis-
crimination and breach of a labor agreement.
The district court dismissed that suit, based
partly on the defendants’ affidavits. Wafer
then sued defendants, essentially for lying in
their affidavits. She cryptically accused them
of libel, obstruction of justice, perjury, misuse
of process, and abuse of office. The district
court dismissed, holding that the defendants
had absolute immunity for statements made as
witnesses.
Although Wafer does not specify whether
her suit arises under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), or the Federal Tort
Claims Act, 28 U.S.C. § 2671 et seq., the
source of law makes no difference. Witnesses
have absolute immunity from a Bivens action
based on their testimony. Briscoe v. LaHue,
460 U.S. 325, 334 (1983); Charles v. Wade,
665 F.2d 661, 666 (Former 5th Cir. 1982).
Louisiana law also gives non-party witnesses
absolute immunity from damages based on
their former testimony.1 Marrogi v. Howard,
805 So. 2d 1118, 1126 (La. 2002). Defen-
dants are therefore entitled to absolute immu-
nity in any event.2
AFFIRMED.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Under the Federal Tort Claims Act, we apply
the law of the state in which the events occurred.
28 U.S.C. §§ 1346(b)(1), 2674; Brown, 188 F.3d
at 586. Louisiana law gives a non-party witness
absolute immunity only for “pertinent and mate-
rial” testimony, Marrogi, 805 So. 2d at 1126, but
Wafer concedes that the defendants’ affidavits
were relevant to her earlier suit.
2 To the extent that any defendants are not fed-
eral officers for purposes of Bivens or the Federal
Tort Claims Act, the district court had supplemen-
tal jurisdiction over Wafer’s claims against them,
28 U.S.C. § 1367, and they too have absolute im-
munity from her claims, Marrogi, 805 So. 2d
at 1126.

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